New South Wales Crime Commission v Warburton

[2015] NSWSC 9

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Warburton [2015] NSWSC 9

Hearing dates:

22 January 2015

Date of orders:

22 January 2015

Decision date:

22 January 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and

Considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 21 January 2015, there are reasonable grounds for the suspicion stated therein

The Court orders:

1.Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt otherwise to deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Christian Paul Warburton, including his interest in the property specified in Schedule One hereto but excluding his interest in property in the property specified in Schedule Two hereto.
2.Pursuant to subparagraph 12 (1) (b) (i) of the Criminal Assets Recovery Act 1990 Christian Paul Warburton shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.
3.Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.
4.Pursuant to subsection 10B (2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest in property of Christian Paul Warburton in the property specified in Item 1 of Schedule One hereto.
5.Pursuant to paragraph 12 (1) (d) of the Criminal Assets Recovery Act 1990 Christian Paul Warburton shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Christian Paul Warburton, a statement verified by oath or affirmation of Christian Paul Warburton setting out the particulars sought in Schedule Three hereto.
6. Liberty is granted to the Plaintiff and Christian Paul Warburton to apply on three (3) days' notice.
7.The costs of obtaining these orders shall be costs in the cause.
8.Pursuant to Rule 36.4 (1) (a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

SCHEDULE ONE

1.Holden Utility VE 3.6L 6SPA SIDI SV6 utility motor vehicle, registration number NBN02G and registered in the name of Christian Paul Warburton.
2.Funds in Westpac Banking Corporation account number 732196 597489 and held in the name of Christian Paul Warburton.

SCHEDULE TWO

1.Cash in the amount of approximately $1.7 million seized by police on 18 December 2014 pursuant to a search of motor vehicle CJB48K at Century Towers 343-357 Pitt Street, Sydney, New South Wales.
2.Cash in the amount of approximately $50,000 seized by police on 18 December 2014 pursuant to a search of motor vehicle CJB48K and located in a duffel bag on the front seat of the motor vehicle at Century Towers 343-357 Pitt Street, Sydney, New South Wales.
3.Cash in the amount of approximately $1.6 million seized by police on 18 December 2014 pursuant to a search of motor vehicle NBN02G at Century Towers 343-357 Pitt Street, Sydney, New South Wales.
4.Cash in the amount of approximately $14,000 seized by police on 18 December 2014 pursuant to a search of apartment 5205/343-357 Pitt Street, Sydney, New South Wales.

SCHEDULE THREE

1.Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

(a)a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value (or in the case of bank accounts or deposits - the estimated balance) of that interest;
(b)the location of the interest;
(c)the name of the person or institution in whose custody title documents in respect of the interest are believed to be;
(d)the date or approximate date of acquisition of the interest; and
(e)the source of funds used to acquire the interest.

2.Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

(a)a full description of the liability including the nature of that liability and the amount of that liability; and

(b)the name of the person or institution to whom or to which the liability is owed.

3.Provide full particulars of the source of the monies specified in Schedule Two herein.

Orders to be entered forthwith

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act (1990) NSW

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)

Representation:

Counsel:
E Goh (Plaintiff)
No appearance (Defendant)

Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendant)

File Number(s):

2015/21185

Judgment

1. This is an application for orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW). This section enables an application to be made ex parte for a restraining order which remains in force whilst there is an application pending, in this case, for an unexplained wealth order under s 28A of the Act.

2. The application is supported by an affidavit of Jonathan Lee Spark sworn 21 January 2015. In that affidavit Mr Spark, who is an authorised officer as defined in s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity, namely, knowingly dealing with the proceeds of crime intending to conceal that it is proceeds of crime, contrary to s 193B(1) of the Crimes Act 1900 (NSW). That offence is a serious criminal offence pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

3. The grounds on which Mr Spark holds his suspicion are set out in para 4 of the affidavit. In short, he has read a fact sheet obtained from the New South Wales Police, which he has annexed to his affidavit. He made enquiries of the police to determine the correctness of the matters contained in the fact sheet and if that fact sheet was prepared as a result of the investigation described in it. Although the particular police officer who prepared the fact sheet was not available to answer those enquries, Mr Spark received answers which identified that the matters contained in the fact sheet were true and were prepared as a result of that investigation. In addition, Mr Spark has made enquiries and ascertained that the defendant has been charged with the offences described in the fact sheet.

4. Section 10A(5) requires an order to be made by the Court if the Court is of the view that Mr Spark's suspicion is reasonably held. I have read the fact sheet and the other documents annexed to Mr Spark's affidavit and I am satisfied that his suspicion is reasonably held.

5. I am satisfied, further, as s 10A(3) requires that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales.

6. Section 10A(4) enables notice to be given to the defendant before the order is made if the Court thinks fit. In the light of Mr Spark's evidence concerning the manner and speed with which property can be disposed of and transferred, I do not consider that the defendant should be given notice of this application before the order is made. I am satisfied that Mr Spark has the necessary experience and knowledge to express that opinion. In any event, the applicant has rights under s 10C of the Act to apply to the Court.

7. Leave to file in court the summons, the affidavit of Jonathan Lee Spark sworn 21 January 2015, together with the statement of facts and circumstances.

8. I note the usual undertaking is given.

9. I make orders in terms of paragraphs 1, 2, 4, 5, 7 and 8 of the draft order.

10. I grant the leave and liberty contained in paragraphs 3 and 6.

11. The orders may be taken out forthwith.

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Decision last updated: 23 January 2015